Author: Asmita Chakraborty | Featured Pic-Credit: Shashwat Ashiya


Meaning.

497. Indian Penal Code Adultery.—Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case, the wife shall not be punishable as an abettor.”

Thus, section 497 of the Code, 1860 talks about adultery. As defined by the Black’s Law Dictionary, ADULTERY is the ‘Voluntary sexual intercourse of a married person with a person other than the offender’s husband or wife’. (Franzetti v. Franzetti, Tex.Civ.App., 120 S.W.2d 123, 127.)

Thus, adultery is punishable according to Indian Law with either fine or imprisonment or both.

Scope of Sec 497 of IPC, 1860.

Historically many cultures have considered adultery as a heinous crime, for which the punishments were severe like torture, death penalty etcetera. Manusmriti was the eternal code of conduct of ancient Indians and the general public followed it religiously which say – “day and night woman must be kept in dependence by the males of their families and if they attach themselves to sensual enjoyments they must be kept under one’s control.[1]

Hinduism has always strictly condemned adulterous liaisons and considered it a moral sin. In Islam, The Quran says “And do not approach unlawful sexual intercourse (zina). Indeed, it is ever an immorality and is evil as a way.[2] While in Christianity adultery is a sin of a married man having sexual relations with anyone other than his wife or a married woman having sexual relations with anyone other than her husband. [3] it is important to understand the concept of adultery in the light of the various religion and religious texts, as before the codified laws becoming the law of the land, it was the religious customs and beliefs that the people followed, even as a measurement of what is right and what is wrong.

After the codification of the substantive criminal law in India as Indian Penal Code in 1860 adultery was codified as an offence under section 497. however, section 497 only makes adultery committed by men punishable. Taking in view the conservative and orthodox views of the earlier years, during which the law was codified and even in the subsequent years, adultery was believed to have been committed mainly by men. However, with the changing time, the Section has not been suitably amended to involve under its ambit adultery committed by women.  Hence adultery on part of a married women doesn’t attract any liability unlike adultery committed by married men. The section clearly states “ he who….” and completely omits the scope of commission of adultery by married women. The question still lies as to whether a woman should be left scot-free because of the biasness of the law even when she is considered to have committed a heinous offence like that of adultery.

Ingredients of Section 497:

To constitute an offence under Section 497 of Indian Penal Code, 1860 the following essential ingredients must be there:

  1. There must be sexual intercourse with the consent of the woman;
  2. The penetration must be sufficient to constitute sexual intercourse necessary to the offence;[4]
  3. Knowledge and reasonable belief that the woman is married to another man and that marriage should be lawful;
  4. The husband of the woman had not consented or connived for the sex with his wife; [5]
  5. And the husband has complained about the sexual intercourse.[6]

Once all the ingredients are fulfilled the person is said to have committed an offence of adultery under section 497 of the Indian Penal Code, 1860

Difference between Rape and Adultery: 
Adultery Rape
  • Defined under section 497 of the Indian Penal Code, 1860.
  • Defined under section 375 of the Indian Penal Code, 1860.
  • The husband is generally the one affected one and is punished under the offence.
  • The woman is generally the affected one, as she suffers from a lot of social, psychological problems
  • There must be presence of a legal marriage in subsistence as an ingredient for adultery.
  • Valid Marriage, age, caste or any other factor is immaterial.
  • Adultery cannot be committed against one’s one wife.
  • Rape can be committed against one’s own wife
  • Adultery is a good legal ground for the wife to stay away from her husband or even ask for divorce.
  • Rape in a subsisting marriage is not considered as a legal ground for marriage though it may be constituted as physical cruelty.
  • Is of less heinous nature
  • Is of very heinous nature.
  • The punishment as well is of less serious nature.( upto 5 years)
  • Punishment is of more severe nature( from 10 years to life imprisonment)
Landmark judgments on section 497 of Indian Penal Code, 1860.
Yusuf Abdul Aziz v. State of Bombay[7]

Post independence, for the first time the exemption of woman under section 497 was challenged and was argued to be violating Article 14 of the Indian Constitution which gives a fundamental right to equality by Mr. Yusuf Abdul Aziz before the Bombay High Court. Having lost at Bombay high Court he moved to Supreme Court whereby a five judge bench held the Section to be constitutionally valid on the grounds that the exemption for women was protective discrimination safeguarded under Article 15(3) of the Constitution. Importantly, Mr. Aziz did not impugn the validity of the offence itself. [8]

Revathi v. Union of India,[9]

The Petitioner expanded the scope of her arguments to assail the validity of restrictions placed under Section 198(2) Cr.P.C., which allow only the husband to initiate a prosecution for adultery committed by his wife and her paramour. In dismissing the Petition, the Court considered Section 497 IPC together with Section 198(2) Cr.P.C. as a “legislative packet” designed to “deal with the offence committed by an outsider to the matrimonial unit who invades the peace and privacy of the matrimonial unit and poisons the relationship between the two partners constituting the matrimonial unit… It does not arm the two spouses to hit each other with the weapon of criminal law.”Ultimately, the Court concluded that “even handed justice” was meted out to both parties.

Smt. Sowmithri Vishnu vs Union Of India[10]

The next landmark decision was delivered by a bench of three judges in 1985. Here, the Petitioner expanded the scope of arguments to impugn the validity of Section 497 as being contrary to Articles 14 and 21 of the Constitution, furthering notions of women as mere chattel.48 The Court remained unconvinced and saw these arguments as falling in the realm of policy rather than law. But this did not stop the bench from engaging with the arguments, providing us with a unique insight into how three judges of the Supreme Court viewed matters of marriage and sexuality. Repelling the contention that exempting women from liability violated the equality guarantee, the Court observed that “it is commonly accepted that it is the man who is the seducer and not the woman”. For the judges, exempting women conveyed the message that “the wife, who is involved in an illicit relationship with another man, is a victim and not the author of the crime”. The peculiar structure behind the offence was understandable because it was an “offence against the sanctity of the matrimonial home, an act which is committed by a man, as it generally is. Therefore, those men who defile that sanctity are brought within the net of the law”. In consonance with this idea, the Court quashed the adultery complaint since the complainant husband had obtained a divorce from his allegedly adulterous wife.

Conclusion:

Generally in most of the foreign jurisdictions, in which adultery which is a criminal wrong, both the parties are held equally criminally responsible. However, the penal law of adultery in India is premised on the one-and-a-half century old caste-based stratified “social setting” in the context of the traditional conservative property-oriented familial ideology and sexual mores. It is also premised on a few outdated and moot assumptions of sexuality, sexual agency and unequal mutual marital rights and obligations of the spouses.[11]

Even though the reasoning for the exemption of woman from the clutches of section 497 was explained on the grounds of social and moral discrimination by the Supreme Court, thereby upholding its constitutional validity, the social setting has changed drastically now. This only, necessitates the need for a neutral gender law in matters of adultery as otherwise it violates the principles of natural justice of equality before law by giving unfair exemption to the woman. Such changes are also imperative to translate the contemporary “social transformation” assuring equality to women and the constitutional spirit of gender equality into a reality.


[1] Muskan Srivastava & Saman Asif, Constitutional validity  of the provisions of adultery in IPC: a Thorough analysis of the origin and history of section 497 of the IPC, The World Journal  on Juristic Polity, ISSN: 2394-5044.

[2] Ibid.

[3] Ibid.

[4] Hari Singh Gour, 4 Penal Law of India (Law Publishers (India) 11th ed 2009) 4654-55 See also, Section 376, Explanation of Indian Penal Code, 1860.

[5] Nurul Haq Bahadur v Bibi Sakina and others 1985 BLD 269.

[6] ibid pp. 4656-61.

[7] 1951 (53) Bom LR 736.

[8] Ibid.

[9] (1988) 2 SCC 72.

[10] 1985 AIR 1618.

[11] “Adultery” in the Indian Penal Code: Need for a Gender Equality Perspective by K.I.Vibhute, (2001) 6 SCC (Jour), www.ebc-india.com, available at 16http://www.ebc-india.com/lawyer/articles/2001v6a3.html.


About the Author: Asmita is a 2016-21 Batch student at Chanakya National Law University, Patna.


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